STATE OF NEW JERSEY v. OMAR N. DAVIS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0058-03T40058-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

OMAR N. DAVIS,

Defendant-Appellant.

____________________________________

 

Submitted March 29, 2006 - Decided April 19, 2006

Before Judges Conley and Weissbard.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Atlantic County, 06-1292.

Yvonne Smith Segars, Public Defender, attorney for appellant (Susan Brody, of counsel and on the brief).

Jeffrey S. Blitz, Atlantic County Prosecutor, attorney for respondent (Jack J. Lipari, Assistant County Prosecutor, of counsel and on the brief).

PER CURIAM

Following a mistrial and a second jury trial, defendant was convicted of first-degree murder, N.J.S.A. 2C:11-3a(1)(2), and second-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4a. He was sentenced to life imprisonment with thirty years parole ineligibility for the murder conviction. A ten-year concurrent sentence was imposed on the weapons conviction, along with the necessary fines and penalties.

On appeal, defendant contends:

POINT I: THE PROSECUTOR'S IMPROPER COMMENTS IN HIS OPENING AND SUMMATION DEPRIVED DEFENDANT OF A FAIR TRIAL (Not Raised Below).

POINT II: THE ADMISSION OF TESTIMONY ABOUT DEFENDANT'S HOUSE HAVING BEEN RAIDED FOR DRUGS IN THE PAST CREATED A DEGREE OF PREJUDICE NOT CURABLE BY THE COURT'S LIMITING INSTRUCTIONS, AND REQUIRES REVERSAL.

POINT III: THE LIFE SENTENCE IMPOSED UPON DEFENDANT FOR MURDER WAS MANIFESTLY EXCESSIVE UNDER ALL OF THE APPLICABLE CIRCUMSTANCES.

POINT IV: THE SENTENCE MUST BE VACATED BECAUSE IN IMPOSING IT, THE TRIAL COURT VIOLATED CONSTITUTIONAL PRINCIPLES SET FORTH IN BLAKELY V. WASHINGTON AND STATE V. NATALE.

POINT V: THE COURT ERRED IN FAILING TO MERGE THE CHARGE OF POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE INTO THE MURDER CHARGE (Not Raised Below).

We have considered these contentions in light of the record and applicable law. We agree with the contention in point V that the weapon offense should have merged with the murder conviction. As a result, point IV is moot, as the Natale concerns do not apply to a murder sentence. As to point III, our conscience is not shocked by the sentence imposed on the murder. While the judge did improperly comment on defendant's refusal to admit his guilt, the comment was clearly incidental to the judge's weighing of the otherwise factually and legally supported aggravating and mitigating factors. As to points I and II, we reject them, but address them as follows.

I.

The Facts

At around 3:00 a.m. on April 8, 2000, the Egg Harbor Township Police responded to a 911 call on Gravesmith Street. The 911 caller reported to police that he had looked out his window after hearing people talking outside. He heard noises that he thought were gunshots, and went outside and heard a man saying "[p]lease, no. I can't take much more of this." He then heard a gunshot coming from across the street.

The police responded and found a body by the passenger side of an Oldsmobile Cutlass Supreme in a residential driveway. The property belonged to defendant's parents. The victim was still alive when the officers arrived, but died soon thereafter.

The investigation revealed that the victim was originally shot while inside the car. A "drag mark" was found, indicating that the body was brought around the back of the vehicle to the passenger side where he was shot in the head. There were also two entrance wounds on the victim's right lower back, one of which matched up with a grazing wound on the right arm, a wound on the right chest, which also grazed the right arm, and a large wound to the left hand.

All wounds to the victim were caused by a shotgun found by the hitch of a camper located on the property. It is undisputed that defendant used the camper to watch television and smoke marijuana. Defendant's parents denied ownership of the shotgun, but there was evidence that at some point in the past a member of the family had owned a shotgun.

Following Miranda warnings, defendant was interviewed by the police. He was interviewed a second time because of contradictions between his statements and statements by other individuals. Defendant was thereafter arrested for murder. At neither of these interviews did defendant confess to the murder. But, following his arrest and during the transport to the county jail, defendant volunteered: "I'm twenty-three and I'm never going to see this again" and "I fucked up."

Although there was not much direct evidence that inculpated defendant, his own statements to others did so. Defendant's cousin, Jackie Davis, testified that shortly before the murder, defendant arrived at his house. He was nervous and asked for marijuana. He left, but then returned around 3:30 a.m. Looking upset, he said he did something that he regretted, saying "I 'murked' him. I shot him." Davis testified that when he asked what defendant was talking about, defendant replied that he had "killed somebody" with a shotgun and that he did so because the victim had taken money from him and had also taken a radio.

Donna Lyons, Davis's girlfriend, testified that when she returned home from work at approximately 9:00 a.m. that morning, defendant was there and told her: "I messed up" and that "the guy was chumping him" which means "treating him like a punk. . . . " Calief Lyons, Donna's son, also testified that he had spoken with defendant who told him, "whatever he did he had to do. . . . " Two other individuals who had gone to Davis's house to buy drugs heard defendant say that he "smoked" the victim and that "[h]is head was shot off."

Additionally, Juanita Tutis, a bartender at a nearby bar, testified that she saw both defendant and the victim in the bar at approximately 2:30 a.m. on the morning of the murder conversing for about ten minutes. Then the victim left and defendant went upstairs. However, in her statement made to the police a few days after the murder, Tutis stated that the two left the bar together. She also related that sometime prior to the murder, the victim had taken defendant's radio which he had left in the bar.

Defendant testified on his own behalf. He stated that he was at the bar for most of the night until it closed, leaving it briefly to go to a party. During the night he had a brief conversation with the victim and did not thereafter see him. After seeing multiple police cars driving toward his parents' neighborhood, and because he had outstanding warrants and was in possession of marijuana, he caught a bus to Atlantic City where he stayed for approximately five hours. Upon returning at approximately 10:00 a.m., and discovering that the victim had been shot on his parents' property, he went to his cousin Jackie Davis's house and bought some marijuana from him. It was defendant's theory that his cousin testified against him to get back at him for having a sexual relationship with Donna Lyons. He denied volunteering any statements to the police while being transported to the county jail following his arrest.

II.

Prosecutor's Comments in Opening and Summation

In his opening statement, the prosecutor forewarned the jury that the forensic evidence recovered from the scene would not directly tie defendant to the murder. In this respect, he said:

You'll hear about some evidence connecting the defendant and his family to that gun. And you're also going to hear from some experts from the State Police lab and the DNA expert from a private lab, but I just want you to forget - maybe what you heard on t.v. and all about fingerprints evidence and things like that because you're not going to be hearing that. You're not going to be hearing that the defendant's fingerprints were all over everything, the gun and the car because you're going to hear that that's really a rarity in cases that you do have that at a crime scene, and you're going to be hearing from a fingerprint expert who will tell you that. So, you know, don't be looking for all kinds of prints over everything because we're just not going to have it. And don't be looking for, [w]ell, his fingerprints were on the clothes, all these bloody clothes the defendant had on and the victim[']s blood would be on those clothes because you're not going to have that either. And you're going to hear testimony about that, and bear in mind also that any clothes that the defendant did turn over to the police wasn't done for almost two days till after the homicide. Because as I said, the homicide took place in the early morning hours of Saturday about ten-of-three. And the first time the police have any contact with the defendant is Sunday night. . . .

[Emphasis added.]

During his summation, the prosecutor concluded with the admonition: "You find him guilty of murder because the facts support it, and justice demands it, and it's a verdict you won't regret."

Defendant contends these remarks constitute reversible misconduct. Defense counsel did not object at the time to the allegedly prejudicial statements. Reviewing the claims, then, under the plain error standard, we are convinced neither was "clearly capable of producing an unjust result." R. 2:10-2.

Prosecutors have considerable leeway in their opening and closing statements, so long as those statements relate to the scope of the evidence presented or to be presented. State v. Timmendequas, 161 N.J. 515, 577 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001); State v. Frost, 158 N.J. 76, 82 (1999). Moreover, the prosecutor can sum up the case graphically and forcefully. State v. Harris, 141 N.J. 525, 559 (1995). This forcefulness must be balanced, however, by the prosecutor's ethical obligation to "see that justice is done." State v. Ramseur, 106 N.J. 123, 320 (1987). See also State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78 S. Ct. 1157, 2 L. Ed. 2d 1160 (1958).

Not all prosecutorial misspeaks require a reversal. State v. R.B., 183 N.J. 308, 333 (2005); State v. Vasquez, 374 N.J. Super. 252, 260-62 (App. Div. 2005). In State v. Frost, supra, 158 N.J. at 83-84, the Court observed:

[T]his Court has held that prosecutorial misconduct can be a ground for reversal where the prosecutor's misconduct was so egregious that it deprived the defendant of a fair trial. Ramseur, supra, 106 N.J. at 322; State v. Siciliano, 21 N.J. 249, 262 (1956). In determining whether a prosecutor's misconduct was sufficiently egregious, an appellate court "must take into account the tenor of the trial and the degree of responsiveness of both counsel and the court to improprieties when they occurred." State v. Marshall, 123 N.J. 1, 153 (1991); see also State v. Scherzer, 301 N.J. Super. 363, 433 (App. Div.), certif. denied, 151 N.J. 466 (1997). Specifically, an appellate court must consider (1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them. Marshall, supra, 123 N.J. at 153; Ramseur, supra, 106 N.J. at 322-23; State v. G.S., 278 N.J. Super. 151, 173 (App. Div. 1994), rev'd on other grounds, 145 N.J. 460 (1996); State v. Ribalta, 277 N.J. Super. 277, 294 (App. Div. 1994), certif. denied, 139 N.J. 442 (1995). Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial. Ramseur, supra, 106 N.J. at 323. The failure to object suggests that defense counsel did not believe the remarks were prejudicial at the time they were made. The failure to object also deprives the court of an opportunity to take curative action. State v. Bauman, 298 N.J. Super. 176, 207 (App. Div.), certif. denied, 150 N.J. 25 (1997).

Here, the prosecutor's comments were not objected to, suggesting that they were not thought to have been prejudicial at the time. Indeed, we find no impropriety in the comments during opening. They merely pointed out to the jury what evidence it would hear and what evidence it would not hear and that the evidence it would hear would establish defendant's guilt.

As to the admonition at the end of summation, the first part, "[y]ou find him guilty of murder because the facts support it," is simply a summation of the facts of the case as the State viewed them. But the comment that "justice demands it, and it's a verdict you won't regret," should have been left unsaid. See, e.g., State v. Knight, 63 N.J. 187, 193 (1973) (prosecutor improperly told the jury that if it was not convinced of defendant's guilt they had not "met the responsibility" thrust on them); State v. Acker, 265 N.J. Super. 351, 356-57 (App. Div), certif. denied, 134 N.J. 485 (1993) (prosecutor improperly told the jury that it is its job to do "justice" in a child sexual assault case). See also State v. Lockett, 249 N.J. Super. 428, 434-35 (App. Div.), certif. denied, 127 N.J. 553 (1991) (finding it improper for prosecutor to urge the jury to convict defendant out of sympathy for the victim).

Nonetheless, no objection was made and the jury was instructed that summations were not to be considered as evidence. Moreover, defendant's own admissions fairly well tied him to the murder. There was no plain error here. See State v. R.B., supra, 183 N.J. at 333; State v. Vasquez, supra, 374 N.J. Super. at 261-62.

III.

Evidence of Drug Raid

Defendant contends the denial of his requests for a mistrial following evidence of a drug raid at his parents' house was erroneous. The alleged offending testimony came from a detective who had met with defendant's brother and parents shortly after the murder. She testified that she asked them about the presence of guns in their home, to which defendant's mother had told her that there had been some handguns and a shotgun in the past. On cross-examination, the detective was asked: "So she told you she had a bunch of guns?" The response was: "She - there were other weapons that belonged to one [of] the other sons. She said the house was raided by the police for drugs, and they seized whatever handguns they had there." After defense counsel moved for a mistrial at sidebar because of the reference to a drug raid, the trial judge declined to grant a mistrial because the answer was responsive to the question but he agreed to give the jury a curative instruction. He then told the jury, "at this point consider [the response] to be disregarded. . . . " The jury was thereafter again instructed, "disregard the response of the witness in reference to a drug raid and the taking of handguns from the Davis residence."

 
Defendant argues that this was bad act evidence inadmissible under N.J.R.E. 404(b). But the evidence was not admitted to prove defendant's disposition to commit the murder. Indeed, it was not bad act evidence relating to defendant. Moreover, given the repeated admissions by defendant as to his use of marijuana, the comment could hardly have been prejudicial. Finally, the jury was instructed to disregard the comment. We assume they followed those instructions. State v. Winters, 96 N.J. 640, 649 (1984).

Affirmed.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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A-0058-03T4

April 19, 2006